By Mitchell Cohen and Josh McLean

“The best education in the world of libel is if you get sued”

— Kevin Donovan, investigative reporter for The Toronto Star

One of the biggest risks faced by any reporter is the possibility of being sued for defamation. In a sense, it’s a danger that comes with the job: good journalists dig up dirt, uncover corruption, and out bad behaviour in the name of public accountability and freedom of the press. Companies, governments, politicians, businesspeople and other public figures are all fair game. But it is easy for reporters to cross the line between holding individuals accountable and unfairly defaming them. A single misplaced fact, a malicious dig, or an extra detail that was uncalled-for may be enough to turn the courts against a reporter in a libel suit.

During the second half of 2013, two major Canadian news stories brought libel law to forefront of national discourse. In May, the Toronto Star first reported the existence of the now-infamous “crack-cocaine video” featuring Rob Ford, the mayor of Toronto. Within days, the Globe and Mail released its own investigation into the alleged drug habits of Doug Ford, the mayor’s brother and a Toronto city councillor.

WATCH Josh McLean outline the issues surrounding defamation law and the Fords.

It would be an understatement to say that the reports were scandalous and damaging to the Ford brothers’ reputations. Mayor Ford was disgraced and, in November, stripped of many of his executive powers by the Toronto city council. Over half a year later, media pressure continues to stem from the original allegations. But to this day, neither brother has been charged for any alleged misdeeds. The elephant in the room is the question: why have the Fords not taken their accusers to court?

This study will discuss defamation law in Ontario by examining the media coverage of the brothers Ford, and, specifically, the reporting on the “crack video.”

The Truth of the Matter

Truth or justification is a complete defence against libel in Canadian law (Jobb 109). Anyone who prints or broadcasts a true statement of fact has a complete defence for libel, no matter how injurious the words. The right to speak the truth is protected by Section 2b. of the Charter of Rights and Freedoms, which grants all Canadians “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

Truth is the strongest libel defence available to a reporter. But in practice, it can be difficult for journalists to rely on the defence of justification alone. Consider the situation in which the Toronto Star’s Robyn Doolittle and Kevin Donovan found themselves in on May 3, 2013. It was evening, and they were sitting in a black sedan with a source on Dixon Road in Etobicoke. A month of negotiations with stealthy informants had led to this moment. Doolittle was expecting someone — a “dealer” she had never met or spoken to.

"He pulled out a black iPhone… He hit play. There was no question. There was Mayor Rob Ford, rambling, slurring, stuttering, jerking around on his chair, smoking from a crack pipe."

Doolittle and Donovan were convinced they had just witnessed the mayor of Toronto caught on camera with illegal drugs, but they had little hard evidence to prove it. Doolittle’s sources had contacted her on a condition of anonymity. She had been asked to leave her cell phone outside the car; she had no evidence of a crime, and no access to the smoking gun — the video itself. All Doolittle and Donovan had were their notes, and their memories. What kind of article could they write?

One thing is certain: the defence of truth would not have permitted the Star to report that the mayor of Toronto was smoking crack. Proving that Rob Ford had committed a crime would have been difficult, if not impossible. Civil courts do not expect libel defendants to prove an allegation “beyond all reasonable doubt”, but they do expect any claim to pass what media lawyer Peter Jacobsen describes as a “balance of probabilities” (Jacobsen).

For Doolittle and Donovan, telling the truth meant reporting only what they had seen and heard:

[The video] appears to show Ford in a room, sitting in a chair, wearing a white shirt, top buttons open, inhaling from what appears to be a glass crack pipe. Ford is incoherent, trading jibes with an off-camera speaker who goads the clearly impaired mayor by raising topics including Liberal Leader Justin Trudeau and the Don Bosco high school football team Ford coaches.

These words were chosen with care. They described the setting, Ford’s apparel, his demeanour, and his actions. His comportment was “impaired” and “incoherent,” which does not necessarily mean inebriated or drugged. Most importantly, they did not accuse the mayor of smoking crack cocaine. And that’s for good reason: in the words of Ford’s lawyer, Dennis Morris, to the Star: “How can you indicate what the person is actually doing or smoking?” (Doolittle and Donovan).

It wasn’t until months later that the standard of truth would have allowed journalists to report on the allegations against Rob Ford in a more direct manner. On November 5, Ford dropped the bombshell.

Fair Comment

Statements of opinion, such as those provided by newspaper columnists, are protected under Canadian law by the defence of fair comment — with conditions. At a push, the defence might be applied to the comment that the mayor is smoking what “appears” to be crack.

Responsible Communication

One of the results of the 2008 defamation case Grant v. Torstar is that it is now possible for reporters to take preemptive measures against libel. The defence of responsible communication rewards reporting that is professional, accurate, and carried out in good faith — even if it isn’t possible for the reporter to prove the truth of an allegation. But that doesn’t mean journalists can get away with printing anything. As the Star’s Kevin Donovan recounts:

“I’ve had many, many lawsuits over the years, and you quickly figure out that once you get summoned to an examination or a discovery or a trial, there are no secrets. You have to be really honest and open about you did. What I’m always encouraging journalists to do is make sure they take good notes and conduct themselves when reporting on a story or investigating a story in the best ways possible” (Donovan).

Evidence of sloppy research (or, worse, malice) is enough to overturn the defence of responsible communication, so journalists should keep in mind that their conduct before a story goes to press matters as much as the words that appear in the finished piece. Plaintiffs in Ontario can win large awards in the form of aggravated damages for malicious libel, as the defendants found out in Hill v. Church of Scientology of Toronto (1995), 2.S.C.R 1130. For reporters, taking the proper precautions when researching and interviewing sources can be the difference between a career-making exposé and an expensive loss in court.

The seriousness of the allegation: An allegation that the mayor purchased illegal drugs from gang members is quite serious. A judge would therefore expect a high standard of responsible journalism (Jobb 119).

The public importance of the matter: The lawyers we consulted, as well as the Ontario Press Council, were unanimous that the conduct of Toronto’s chief magistrate is of great importance to the public (“OPC Decision: Donley Vs Toronto Star, October 2013”). The Star’s coverage dealt with issues of crime and public safety, and raised questions about the mayor’s involvement with members of the Dixon City Bloods — a gang under active police investigation at the time. One of the individuals who appeared with the mayor in a still photo was identified as Anthony Smith, a man who had been shot and killed two months earlier.

The urgency of the matter: Is the story newsworthy — and why is it news right now? The existence of the crack video was first brought to Doolittle’s attention in early April (Doolittle, “Rob Ford crack video story started with an anonymous early morning phone call to a reporter”). The Star held onto the story for more than a month while it continued to develop its coverage of Project Traveller. The paper was compelled to print its story early after John Cook published his own account of seeing the video on the social news site Gawker (“For Sale: A Video of Toronto Mayor Rob Ford Smoking Crack Cocaine”). The Project Traveller raids were carried out in June, shortly after the Star broke its story (Russell).

The status and reliability of the source: The Star could not produce the crack video or fully identify its broker, referring to him simply as a “Somali man” and “community organizer” (Doolittle and Donovan). By the time of publication, the Star reporters’ account had been corroborated by Gawker CEO John Cook, who also claimed to have watched the video. But most important, the two reporters saw the video themselves. Donovan and Doolittle independently compiled their recollections and then compared them before writing their story.

Whether the plaintiff’s side of the story was sought and accurately reported: The Star article does not include a response from the mayor, but its reporters attempted to contact the mayor multiple times before they printed the story, and kept a paper trail and recordings of these attempts (Donovan). The mayor and his staff did not offer any comments on the allegations. Unable to procure a direct response, the Star reprinted the words of Ford’s lawyer Dennis Morris, who had earlier told Gawker that the accusation was “false and defamatory” (Doolittle and Donovan).

Whether the inclusion of the defamatory statement was justifiable: The defamatory claim — that the mayor of Toronto had been seen in a video allegedly smoking crack cocaine — was the entire basis of the story and inextricable from it.

Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”): The reportage defence may protect reporters who accurately reproduce otherwise defamatory statements made by a source — so long as certain conditions are met. In order to reprint or broadcast a claim made by a source, a publication must attribute the claim, provide context for it, represent all sides, and indicate that the claim has not been verified (Jobb 120). (This aspect of the defence does not apply in the crack-video story, which does not rely on sources’ statements.)

Any other relevant circumstances: The tone of the story or considerations of what the reporter intended to say can also factor into the defence (Jobb 120).

The eight factors of responsible communication set out in Grant v. Torstar do not automatically indemnify anyone who makes defamatory statements; they may be disregarded altogether depending on the circumstances of an individual case. Malice still matters, and a journalist must still be able to prove that the statement in question was published in the public interest. But reporters who keep McLachlin’s considerations in mind can now build a strong defence while preparing their stories. Based on these criteria, a convincing argument can be made that the Star made a substantial effort to produce accurate, responsible journalism.

The Right to Respond

The right of a subject of a story to be represented fairly is a tenet of good journalism. The Canadian Association of Journalists, for instance, lists the following principle of fairness in its ethics guidelines:

We give people, companies or organizations that are publicly accused or criticized opportunity to respond before we publish those criticisms or accusations. We make a genuine and reasonable effort to contact them, and if they decline to comment, we say so ("Ethics Guidelines").

The responsible communication defence for libel imposes further expectations on reporters and newspapers to contact and publish the responses of people who are named in stories — particularly if the accusations are serious. Jobb writes that journalists “must strive to be fair and get all sides of the story,” including denials and information which raise questions about the truth of the allegations (Jobb 120). A full response cannot always be obtained — sources may be unavailable, unaware of the allegations due to a private police investigation, or unwilling to comment. But for the purpose of the defence of responsible communication, what matters is that a sincere and reasonable effort was made to reach out to a subject.

One of the key questions raised by the Ontario Press Council (OPC) in its investigation of the Toronto Star and The Globe and Mail was whether the papers made enough of a genuine effort to contact Rob and Doug Ford, respectively. Neither public figure offered any comment in the stories that contained allegations against them. For its part, the Star outlined fourteen attempts to reach the mayor for comment. These included multiple calls and texts to the mayor’s office and staff, a call to the mayor’s lawyer, and a personal visit to the mayor’s house ("Appendix 1"). The paper also described occasions over the prior year when it had tried unsuccessfully to seek comment from the mayor regarding his alleged substance abuse issues ("Appendix 2").

The Star continued to press the mayor for comment after the story was published, but Rob Ford continued to remain silent. He finally offered his side of the story on May 26 — eight days later. His response was then reported on by the Star:

“I do not use crack cocaine, nor am I an addict of crack cocaine. As for a video, I cannot comment on a video that I have never seen or does not exist."

The OPC found that the Star had acted responsibly in its efforts to contact the mayor, concluding that the paper “[met] the requirements of good investigative reporting that affords the subject of the story the opportunity to be informed and respond” (“OPC Decision: Donley Vs Toronto Star, October 2013”). A factor that influenced the OPC’s decision was the proactive decision the Star made to incorporate lawyer Morris’s response from the Gawker story even though the paper was unable to procure comment on its own (“OPC Decision: Donley Vs Toronto Star, October 2013”).

A comparable complaint against The Globe and Mail was also dismissed; the Press Council found the Globe had fulfilled its obligation to alert Doug Ford of the allegations against him, noting that the paper “had made seven or eight attempts to get him to respond” (“OPC Decision: Harrison Vs Globe And Mail, October 2013”).

Public Interest

For a defamatory claim to be protected under the defences of responsible communication or fair comment, the story must concern a matter of public interest. The definition of public interest is not clearly defined in the law, and it is up to a judge to decide whether the conditions have been met in any individual case. In general, a story “must deal with a subject or issue that invites public attention, affects the welfare of citizens, or has generated controversy or gained notoriety” to be considered in the interest of the public (Jobb 119).

Rob and Doug Ford are both prominent politicians and notorious public individuals. In the United States, there is a separate defence available to the media when it publishes information about public figures, so long as that information is published without “actual malice” (New York Times Co.). But Canadian law does not offer such a defence: in the words of the Supreme Court, a story that simply discusses “the private lives of well-known people” can still be defamatory if the information is not shown to be in the public interest (Jobb 119).

WATCH lawyers Peter Jacobsen and Howard Winkler discuss whether media coverage of the Fords is in the public interest.

The kinds of information embraced by public interest can depend on context and circumstances. According to Kevin Donovan, the Star initially limited its reporting about Mayor Ford’s family life and his marriage (Donovan). But on November 14, the mayor made the now-infamous comment about his sex life, saying “he had enough to eat home.” Later that day, Renata Ford accompanied the mayor to a press conference and commented on his apology for his earlier remarks (“Rob Ford’s wife Renata comments”). Renata Ford had become a part of the story, and information about her that would have formerly been off-bounds was now squarely in the public interest.

A similar metric applied to the Star's November 7 decision to purchase and publish a cell phone video of the mayor engaged in a bizarre and unintelligible rant (“Rob Ford caught on video in violent rant”). Donovan said he based his decision on the possibility that the video contained a death threat, but he agreed that the public interest value of the video was strengthened by its relation to existing drug allegations about the mayor:

“Given the profile the mayor has given himself, and his continuing denials at that time that he was involved in anything to do with substance abuse, and that it was a one time thing, in my argument — and the Star would agree with this — that made it public interest” (Donovan).

The report in The Globe and Mail about Councillor Doug Ford’s alleged drug history brought its own public interest concerns. One debate in particular concerned the article’s discussion of Kathy and Randy Ford, members of the Ford family who were not previously public individuals. The article described the past relationships of Kathy Ford with individuals who had drug histories, and alleged that Randy Ford had engaged in similar drug-dealing activities alongside his brother Doug. The Globe’s argument for discussing the Ford siblings is presented in the OPC finding:

Mayor Rob Ford and Councillor Doug Ford made their family a ‘public entity’ through repeated references to the many contributions the family has made to the public health and welfare of the City of Toronto and, in particular, the Etobicoke area, where they live (“OPC Decision: Harrison Vs Globe And Mail, October 2013”).

The OPC found that the Globe “came close to crossing the line” when it intruded into the lives of semi-private individuals (“OPC Decision: Harrison Vs Globe And Mail, October 2013”). However, the Council ruled that the “overall theme” of the article ultimately justified including those details about the lives of the Ford siblings in the name of public interest.

Qualified Privilege

On November 14 — months after the Star broke its original story — Mayor Ford gave his first, and so far only, indication that he would take his detractors to court for defamation:

“It’s unfortunate I have to take legal action. I don’t appreciate people calling Alana a prostitute. I’ve never had a prostitute here. I’m very happily married at home. This is very disturbing against my wife. Unfortunately I have to take legal action against Isaac Ransom and George Christopoulos and Mark Towhey. I have to take legal action against the waiter that said I was doing lines at the Bier Markt. That is outright lies. That is not true.”

The mayor made the above statement during a news conference in response to the most recent allegations against him, which had arisen from the release of police documents containing interviews with former staff members. Many of the accounts in the report were vivid and embarrassing: one staffer, Isaac Ransom, recalled that Ford had once “downed half of a 40oz bottle of vodka;” other witnesses reported seeing the mayor inebriated in public (Boesveld et al). Some allegations implicated the Mayor in criminal activities, such as drinking while behind the wheel of a car, hiring prostitutes and doing lines of cocaine.

Without question, the words in the police report were harmful to the mayor’s reputation. But the mayor’s promises to sue the named sources was ill-advised. The staffers and other witnesses who spoke with the police would have potentially merited the defence of absolute privilege — a total immunity to being sued if person is under a moral or legal obligation to relay certain information to the authorities (Jobb 114). And both the staffers and the media outlets that reported on the contents of the police document would have been able to exercise the defence of qualified privilege, which grants conditional immunity for well-intentioned reports to the police, and for the publication of privileged information — such as court documents, police reports, and public proceedings (Jobb 115).

Qualified privilege is not a complete defence against libel — the reporting of privileged information must still be “fair and accurate” (Jobb 115). But a CBC report examining Ford’s intentions to sue found that the mayor would have had little chance of succeeding in court. According to CBC media lawyer Sean Moreman, Ford would have had to demonstrate bad faith on the part of the defendants to defeat the defence of qualified privilege:

“The only way he can overcome the privilege would be establishing malice — either they’re being vindictive or they were completely reckless as to what they were reporting was true” (qtd. in Stastna).

Moreman added that a suit against the staffers would possibly have been dismissed outright. The article quotes the mayor as saying that litigation “will be starting shortly;” as of this writing, Rob Ford has not taken any legal action for defamation against any sources.

Conclusion

"I think the reason [responsible communication] has become a defence is because it’s the way we’ve practiced journalism since the mid–90s. The importance of it is that we now have it enshrined in law that journalists have to get the other side of the story…. It’s now something we can explain to people: it’s not just how we think we should do it. It’s how we’re supposed to do it" (Donovan).

When the OPC cleared the Star of any ethical wrongdoings in its coverage of the crack video scandal, its report concluded that the paper reported on matters of public interest in a “timely fashion,” and that its behaviour was consistent with the principles of “good journalism that serves the public interest, without losing sight of the commonly accepted ethical standards that apply to all newspaper reporting” (“OPC Decision: Donley Vs Toronto Star, October 2013”).

It should come as no surprise, then, that neither Rob nor Doug Ford have launched lawsuits for defamation. Despite the mountains of allegations against them — each one more scandalous than the last — the brothers are unlikely to overcome the defences of truth, responsible communication, and qualified privilege.